Bo Cooper, Fragomen (courtesy photo)
Donald Trump’s promise to crack down on illegal immigration helped to propel his successful presidential campaign, partly thanks to the idea that undocumented low-wage workers have undercut America’s working class. But corporations that legally employ foreign workers are also expecting changes—and going to their lawyers for advice. While the ultimate effect on their business is hard to predict, law firms with immigration practices say they’ve gotten frantic calls from clients worried that the incoming administration could force costly changes to their workforces.
“It started about 10:20 on election evening,” said Michael Neifach, an immigration partner at Jackson Lewis. The theme of the questions: “What does this mean?”
Fragomen, Del Rey, Bernsen & Loewy, an Am Law 100 firm with a singular focus on immigration law, has been keeping clients up to date on what they might expect over time, said Bo Cooper, head of the firm’s government strategies and compliance group.
“The phones have been lit up nonstop since the election,” Cooper said. “If you’re an employer, and typically these are employers who are principally made up of U.S. workers, but if you rely in some part on foreign talent, you can identify very precisely what numbers might be affected.”
The uncertainly is keeping things busy for now, but if Trump succeeds in stemming the flow of immigration to the United States, immigration practices could see a slowdown in the long-term. Still, lawyers at several Am Law 100 firms insisted they weren’t concerned, even if they have no plans to expand.
Some changes in immigration law could come quickly.
On day one, the administration could intensify immigration inspections and investigations at companies that use visa programs. The Department of Justice, Homeland Security and the Department of State all have investigative authority over immigration, Cooper said.
In a matter of months, Cooper continued, the Trump administration could roll back regulatory reforms that President Barack Obama put in place, such as extending Optional Practical Training visas for foreign workers who completed their education in the United States in the science, technology, engineering and math fields.
Cooper noted that Trump’s pick for attorney general, Sen. Jeff Sessions, R-Alabama, has been a vocal proponent of changing the H-1B visa program, which companies have used to hire foreign workers, particularly in the tech industry. In the longer term, Congress could pass legislation to make it more cumbersome for companies to use H-1Bs, Neifach said.
Trump might also be supportive if Congress attempts legislation to make it mandatory to use E-Verify, a program that allows companies to compare information from an employee’s I-9 form to U.S. Department of Homeland Security and Social Security Administration data, Neifach said.
Room for Growth?
Susan Cohen, chair of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo’s immigration practice, noted that law firms that hire foreign professionals, some of which are her clients, may also have cause for concern. Trump was very vocal about renegotiating the North American Free Trade Agreement, which, among other components, allows some Mexican and Canadian workers to come to the United States on what’s called TN visas.
“Many law firms have people working on TN visas, especially in intellectual property law,” Cohen said.
She added that she’s been hearing from a lot of technology companies since the election, including from foreign CEOs who may have green cards but think now might be a good time to seek permanent citizenship.
Cohen said that while some smaller and midsized companies might determine that it’s not worth the expense and hassle to hire foreign workers if these policy changes are enacted, she didn’t expect the same would be true of the biggest employers.
“The big companies, they’re not going to change their practices,” she said, noting that those are Mintz Levin’s clients. “We see it as area of growth.”
Fragomen’s Cooper added that his firm frequently works with other firms handling white-collar matters that have immigration components. Fragomen is often retained to answer immigration-related questions, which Cooper said he thinks are bound to multiply.
But it’s still too soon to tell which of these ideas Trump’s administration will actually pursue, noted Mayer Brown employment and immigration partner Paul Virtue.
“There’s a big gap between campaign rhetoric and what gets through,” he said.
Contact Nell Gluckman at firstname.lastname@example.org or on Twitter: @NellGluckman